Avoiding a professional negligence claim

It is important for attorneys providing legal advice and services to be aware of which actions can give rise to a claim for professional negligence.

Here are some tips to minimise a professional negligence claim being brought against you…

1. Obtain all the facts 

The number one complaints against attorneys are neglect and delay.

Consulting timeously before any response or proceedings are contemplated ensures a cautious and well-constructed approach.

Consulting early also gives the client the opportunity to provide you with crucial details which are often neglected or overlooked when rushing.

When facts change opinions change. So make sure the client knows the basis on which you are working at all times and reduce this to writing to remind yourself and the client.

2. State your expertise upfront

Prior to conducting work in any matter for any client advise the client of the extent of your expertise and the reasons on which your opinion has been based.

Refer to your experience with similar matters or the relevant legislation which is applicable to the client’s scenario.

Many cases for professional negligence pivot on how much information the client was provided with at inception so setting out clearly in advance the summary of facts that you have and the conclusions drawn or opinions formulated by you at an early stage will mean that there can be no confusion as to what was possible or intended.

Some clients tend to consult their lawyer on every aspect of their life or business – and the range of advice you may be expected to give may be outside your usual remit. In such cases resist the urge to advise on any area you shouldn’t and know when to call in the services of Counsel.

3. Avoid conflicts of interest

Determine whether the duties that you owe to current clients, former clients and any third persons might affect the duties owed to your new client.

Similarly, determine whether you have any personal interests that might affect the duties owed to your client.

4. Recordal of terms of engagement / non engagement 

Ensure you conclude a Letter of engagement (professional mandate), between you and your client – which gives certainty to your mandate such as your fees, billing systems or practices, extent of work to be performed,   tasks to be performed by members of your team members, interactions with the client and the resolution of disputes which may arise concerning any of these issues.

 Likewise if you decide not to take on a matter, it is recommended that a letter of non-engagement is sent to the client. This should be written in plain language, clearly and concisely informing the client that you will not be accepting the mandate. Where applicable, ensure that the letter contains a warning about any applicable prescriptive period. It is important to ensure that the letter is received by the client to protect yourself.

5. Keep proper and detailed notes

With a number of ongoing complex and technical matters for any busy attorney the exact details of each matter is likely to fade from your memory. It is very important to record the sequence of events and facts in each matter to refresh your memory when revisiting the matter/ file. Keeping notes will also ensure you don’t lose out on billable time spent on the matter.

6. Know the extent of your capacity

No matter how well you know your subject, if you are working under pressure you are far more likely to make a mistake. If a client needs a response, opinion,  urgent action taken by a certain date – make sure it is viable and realistic before you agree to deliver it on time. If it exceeds your usual time frame, get consent to bring in outside help or ensure you can set aside enough time to devote to the request.

7. Good practice management is best achieved where the client knows his / her responsibilities too

If you require input or information from the client in order to be able to deliver a legal service on time, make sure you clearly document exactly what is needed and by when.

Any follow ups or reminders should also be carried out in writing to ensure that you have a full audit trail of the action you have taken or your inability to take action due to the lack of input /information provided.

Clients should be are aware of the potential consequences if they fail to revert on time.

Jacqui Smith (LLB)

Legal Advisor